점유권 개념에 관한 입법론적 고찰

Article 192 of the Korean Civil Code provides under the title of the acquisition and lost of the ‘possession right’ that “a person who has actual control of the thing, has the possession right”. But the thought that the ‘possession right’ as a sort of property right is to obtain through actual control over the thing is unacceptable. It is unclear, why to the acquisition and lost of the possession right is not applied the article 186 sq. but the article 192. It is better to leave the concept of ‘the possession right’ and understand the claim on account of deprivation of possession or interference with possession as legal protection of the possession. Also the article 204 provides legal protection without the conception of the ‘possession right’. And the dominant view understands the ‘possession right’ as source or fountain of the legal protections. A similar example is hard to find in the legislation of the civilized countries. Therefore, it is to recommend to replace the concept of possession right in the article 192 with the concept of possession as actual control of a thing. As a result also the Article 191, 193, 208, 196 are to amend. In particular, the article 196 does not play a role in praxis except in the case of transfer of indirect possession. Therefore, it is to propose to restrict the article to the case that indirect possession is transferred to another by assigning to the other the claim to return of the thing.